BVA9508475
DOCKET NO. 93-14 389 ) DATE
)
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Whether new and material evidence sufficient to reopen the
appellant's claim for service connection for chronic sinusitis
has been submitted.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. J. Bohanan, Associate Counsel
INTRODUCTION
The appellant served on active duty from March 1975 to March
1979.
This appeal arises from a July 1992 Department of Veterans
Affairs, Cleveland, Ohio (VARO) rating decision, which denied the
appellant's claim for service connection for chronic sinusitis on
the basis that new and material evidence sufficient to warrant
reopening of the appellant's claim had not been submitted.
VARO denied the appellant's original claim for service connection
for chronic sinusitis in November 1984. The appellant was
notified of that decision and of his appellant rights by letter
dated in November 1984. The appellant did not appeal that
decision and it became final.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that he has chronic
sinusitis that did not exist at the time of his service entrance
and was acquired during service. Implicit in the appellant's
claim is the contention that, since VARO's November 1984 decision,
he has submitted new and material evidence, which is sufficient to
allow the Board to reopen and review his claim of service
connection for chronic sinusitis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that new and material evidence sufficient to warrant
reopening of the appellant's claim for service connection for
chronic sinusitis has not been submitted.
FINDINGS OF FACT
1. The appellant served on active duty from March 1975 to March
1979.
2. A November 1984 VARO decision denied the appellant service
connection for chronic sinusitis; following proper notice, the
appellant did not file a timely appeal.
3. Evidence submitted by the appellant in support of his claim
since VARO's November 1984 decision includes: medical treatment
records dated from March 1987 to October 1990 from Kaiser
Permanente; medical treatment records from the appellant's private
physician, Murray Winchell, M.D., dated from January 1980 to May
1992; and testimony by the appellant at his February 1993 hearing
on appeal.
4. Evidence submitted by the appellant in support of his claim
since VARO's November 1984 decision is cumulative, and, when
viewed in the context of the earlier evidence of record, does not
raise a reasonable possibility that the prior outcome of the claim
would change.
CONCLUSION OF LAW
VARO's November 1984 decision is final as to the denial of service
connection for chronic sinusitis; evidence received in support of
the appellant's June 1992 request to reopen his claim is not new
and material, and the claim is not reopened. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 20.1103 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking service connection for chronic sinusitis.
As was indicated in the Introduction above, the appellant's claim
for service connection for chronic sinusitis was the subject of an
unfavorable VARO decision in November 1984. The appellant was
duly notified of that decision and of his appellate rights by
letter, but he did not file an appeal. The decision of the VARO
is considered to be final. 38 U.S.C.A. § 7105 (West 1991); 38
C.F.R. §§ 3.104(a), 20.302, 20.1103 (1994).
Under pertinent law and regulations, as interpreted by the United
States Court of Veterans Appeals, the VA may reopen and review a
claim which has been previously denied if new and material
evidence is submitted by or on behalf of the appellant.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); and
Manio v. Derwinski, 1 Vet.App. 140 (1991).
"New" evidence means evidence which is not merely cumulative or
redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991).
"Material" evidence is evidence which is relevant and probative of
the issue at hand and which, furthermore, leads to a reasonable
possibility that the new evidence, when viewed in the context of
all of the evidence of record, would change the outcome of the
case. Smith v. Derwinski, 1 Vet.App. 178 (1991).
At the time of VARO's November 1984 denial of the appellant's
claim for service connection for chronic sinusitis, evidence of
record included the appellant's service medical records and a
September 1984 VA examination report.
Evidence submitted subsequent to VARO's November 1984 decision
consists of medical treatment records dated from March 1987 to
October 1990 from Kaiser Permanente; medical treatment records
from the appellant's private physician, Murray Winchell, M.D.,
dated from January 1980 to May 1992; and testimony by the
appellant at his February 1993 hearing on appeal.
The additional evidence is clearly "new", in that it was not of
record at the time of VARO's November 1984 denial of the
appellant's claim. However, it is not "material" in that it does
not shed any light on the claimed service-related chronic
sinusitis; it provides no linkage to service, and it is relevant
only as to the state of the disability subsequent to the
appellant's period of service. The recently furnished medical
evidence provides added detail concerning the appellant's post
service sinus condition, but it is not probative of the issue at
hand. This recently submitted evidence is merely cumulative of
evidence of record previously, and it does not tend to suggest
that the appellant incurred a chronic sinus condition during
service.
The additional statements by the appellant, relating his sinus
disorder to service, are only redundant of statements previously
of record, and as such, they are cumulative because they
essentially reiterate earlier assertions. See Reid v. Derwinski,
2 Vet.App. 312, 315 (1992). His additional statements are also
not material, as, being a layman, he has no competence to render a
medical opinion regarding the etiology of his condition. See
Moray v. Brown, 5 Vet.App. 211 (1993); See also, Espiritu v.
Derwinski, 2 Vet.App. 609 (1992).
As new and material evidence has not been submitted, the claim is
not reopened, and the November 1984 VARO decision remains final.
Further analysis of this case must cease. Kehoskie v. Derwinski,
2 Vet. App. 31 (1991).
ORDER
New and material evidence sufficient to reopen a claim for
entitlement to service connection for chronic sinusitis having
not been submitted, the appeal is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.